At what point does a small non-verbal gesture become much more than that? When that gesture is repeated by multiple employees in the same workplace, and that workplace happens to have a national audience of millions every week.
In the last couple of years, multiple players in the National Football League, mostly those of African-American descent, have sought to bring attention to the inherent unequal treatment that African-Americans receive not only in the workplace, but society at large. Their method of choice: kneeling silently during the playing of the national anthem before games.
While this gesture might not seem like much in and of itself, it has become controversial to many people who feel it is disrespectful toward the U.S. and those who serve their country. Even President Donald Trump has waded in, arguing that NFL owners should fire players who choose to participate in this form of protest.
However, legal scholars have differing opinions on whether federal labor law and the terms of the NFL’s collective bargaining agreement would allow the owners to fire players for kneeling during the anthem. This blog explores some of the legal issues involved, as well as practical implications that would come into play if the owners start giving players the axe.
Protection for ‘Concerted Activity’
Under Section 7 of the National Labor Relations Act, employees have the right to engage in concerted protected activity, essentially any activity by two or more employees that concerns, references, or advocates on behalf of workplace issues, particularly terms and conditions of employment. Activity by one employee can be considered concerted if it is designed to engage with other employees or advocate to management on behalf of other employees with regard to workplace issues.
Against this legal backdrop, the question of whether this particular form of protest constitutes concerted protected activity would revolve around whether the players are taking action to raise awareness of workplace issues.
Matthew Bodie, a law professor and co-director of the William C. Wefel Center for Employment Law at the St. Louis University School of Law, noted that if the NFL players are protesting in support of their fellow players, or if they are protesting regarding issues that affect their terms and conditions of employment, then their protests would qualify as concerted protected activity.
The players could argue that they’re engaging in a show of solidarity to support quarterback Colin Kaepernick. He was the first player who took a knee during the anthem and has not been signed by any NFL team since his contract with the San Francisco 49ers ended after the 2016 season. The players can argue that the ongoing protests are in response to how Mr. Kaepernick has been treated by NFL ownership in not being given a chance to make a living in his chosen profession, even though others who play his position are being given the opportunity to play despite arguably being of lower quality.
NLRA Protection May Not Apply
On the other hand, lawyers for the NFL owners could counter this argument by focusing on the political and social nature of the protests. “If the protests are about police violence and misconduct, the ‘kneeling’ and affiliated activity would not be considered concerted activity because it did not concern a workplace topic,” Bodie said.
By arguing that Mr. Kaepernick’s protests originated out of his desire to bring attention to the issue of police violence and misconduct toward minorities, attorneys for the owners could then argue that the subsequent protests by other players, even after the 2017 season began, were geared toward that same focus and thus fall outside the protections of the NLRA.
But even then, Bodie views professional football as a unique environment that lacks a crisp demarcation between private workplace and public forum. “Because the players have a big national stage, their workplace actions may have larger social ramifications, which may mean that a ‘public’-oriented protest would turn into something that involved workplace conditions,” he said.
And under the league’s collective bargaining agreement, the contract provision the owners would be likely to cite as a basis for firing players over the protests is the same one the players could point to in arguing that their firing violated the agreement.
Then there’s the NFL collective bargaining agreement’s arbitration clause, which would require both sides to give their approval to the arbitrator selected to resolve the dispute. That would make it more difficult to predict the outcome.
A Losing Proposition Either Way?
Leaving the legal arguments aside, the uncertainty of the situation and the potential backlash in the form of negative publicity could keep the NFL owners from taking President Trump’s advice.
Let us recall for a moment what happened with “Deflategate,” when superstar quarterback Tom Brady was accused of having people who worked for the New England Patriots, his NFL team, illegally “deflate” the game balls to a level where he could get a better grip and thus, potentially improve his performance. While there was evidence against him that cast him in a suspicious light, it was not entirely clear that he was involved in anything underhanded.
Despite these circumstances, NFL Commissioner Roger Goddell suspended him for four games (one-fourth of the NFL season), and Brady decided to appeal the suspension. Over the course of more than a year, the case wound its way through the federal courts, with a district court overturning the suspension, and the Second Circuit reinstating it, and Brady ending up serving his suspension at the beginning of the 2016 season. However, while the league won the case, it lost the war in the public relations arena, being roundly criticized for its handling of the entire situation.
So, while the law and circumstances surrounding the player protests could be viewed in a way that supports the NFL owners’ ability to fire players for kneeling during the anthem, the practical ramifications could make such a move unpalatable.
Perhaps the prospects of a prolonged legal battle and PR backlash have encouraged the owners and the league to work with the players and take an approach to the issue that’s acceptable to both sides.
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